Boggs v. Teackle

5 Binn. 332 | Pa. | 1812

Lead Opinion

Tilghman C. J.

This is a motion on behalf of the bail of the defendant, for an exoneretur to be entered on the bail piece, on the ground of the principal having been discharged from his debts, by virtue of an act of assembly of the state of Maryland.

Several objections have been made to this motion by the plaintiff’s counsel; the first of which is, that it is too late, the bail having been previously fixed by the return of non est inventus to a ca. sa. against the principal. In support of this was cited the case of Woolley v. Cobb, 1 Burr. 244. Lord Mansfield, in delivering his opinion, does indeed say, that if the bail are fixed before a certificate of bankrupt is obtained by the principal, they remain liable. It is to be remarked however, that in that case there had been judgment against the bail, and a fi. fa. issued and the money levied, and in the sheriff’s hands, before the certificate was obtained. Under those circumstances, the bail had no pretence for relief. But if Lord Mansfield meant to lay it down as a rule, that the bail remained liable in case the principal obtained his certificate after the return of a non est inventus, and before the time allowed for surrendering him had expired, he has been contradicted by subsequent cases, as appears by the authorities cited in Orcott v. Lilly in the Supreme Court of New York, 4 Johns. 407. A ca. sa. having been returned non est inventus, the bail is so far fixed, that he remains liable, unless the body of the prinpal is surrendered within the time allowed ex gratia, by, the practice of the court. If the .principal dies there is no relief. But if he becomes intitled by law to a discharge from imprisonment, an exoneretur will be entered without an actual surrender, on application at any time within the period allowed for surrender; because it answers no purpose to surrender a person who is intitled to au immediate discharge. This is the settled law in New York, and it is so reasonable, that I fully concur in it. In the case before us, the motion was made before the return of the sci. fa. against the bail. It was therefore in time.

2. The second objection goes to the law of Maryland, by which the defendant was discharged from his debts, on executing a conveyance of all his estate in 'trust for his creditors. It is contended that this debt, having been contracted in the city of Washington, the legislature of Maryland had no control over it. Were it a new case, I should think it well worthy of *339very serious deliberation. But the law having been settled by repeated decisions in this Court, I do not think myself at liberty' to disturb it. The very point was expressly decided in Hill-yard -snd Pippet v. Greenleaf where the debt was contracted in this state, and the defendant discharged by act of assembly of Maryland. The rule which we have adopted, is to extend the same courtesy to our sister states which they shew to us. It was so laid down in Smith v. Browne, 4 Binn. 203. The courts of Maryland have paid regard to our insolvent laws, where they have extended to debts contracted out of Pennsylvania. We therefore pay the same regard to their laws. But it is said, that although we ought to pay regard to the general laws of Maryland, yet the case of the defendant is an exception, because he was discharged by favour, the legislature having passed a special act dispensing with some important provisions of their general law, that is to say, dispensing with notice to the defendant’s creditors, and with the assent of two-thirds of them in value, to his discharge. What were the reasons of this exemption does not appear; but the deflhdant was not discharged without an assignment of all his property, and his creditors may at any time within two years, invalidate his discharge, if they can convict him of fraudulent practices. But we shall take dangerous ground, if we enter into an inquiry into the reasonableness of the law of Maryland. Such an inquiry on our part, would lead to a similar one on theirs, with respect to our laws, and the spirit of courtesy would soon be extinguished, amidst mutual accusations and recriminations. No independent state will súbmit to have its motives or its policy questioned by another. There is no acting by halves; we must either give full faith to the laws of our neighbours, or reject them altogether. Upon the whole, I am of opinion that agreeably to the established practice of this Court, the motion for an exoneretur should be granted.

Yeates J.

Millar v. Hall in January Term 1788, led the way to exonereturs being entered on the bail piece, where the defendant bad been discharged under an insolvent law of the state of Maryland, which w,as in the nature of a general bankrupt law. It was the policy of that state not to pass a general insolvent law, but to enact special insolvent statutes, as *340particular occasions arose. The decision has beéu followed in other cases, and particularly in Hilliard and Pippet v. Greenleaf in March Term 1800, where the defendant was a citizen of Maryland, but the plaintiffs were citizens of Pennsylvania, and the debt was contracted here, a note of which I have taken. That case in all its essential features, cannot be distinguished from the present. It appears to me dangerous in the extreme to depart from established principles settled on due deliberation, upon a new artificial system of reasoning. It would tend to entrap those persons who rest their confidence in the uniformity of decision of the tribunals of justice, so devoutly to be wished for in every free country, governed by-known laws.

I am therefore of opinion that the exoneretur should be entered.





Concurrence Opinion

Brackenridge J.

I concur in allowing the motion, solely on the ground of the stare decisis.

Motion granted.